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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Magson v R. [2020] EWCA Crim 27 (28 January 2020) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2020/27.html Cite as: [2020] EWCA Crim 27 |
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ON APPEAL FROM THE CROWN COURT AT LEICESTER
His Honour Judge Dean QC
T20167077
Strand, London, WC2A 2LL |
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B e f o r e :
(LORD JUSTICE FULFORD)
MR JUSTICE WILLIAM DAVIS
and
MR JUSTICE JOHNSON
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Emma-Jayne Magson |
Appellant |
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- and - |
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The Queen |
Respondent |
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William Hughes QC for the Respondent (instructed by the Crown Prosecution Service)
Hearing dates : 10 December 2019
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Crown Copyright ©
Vice-President Court of Appeal (Criminal Division):
When we got home James continued to be abusive which was getting worse. He was screaming at me, and I was shouting at him to get out of my house. He left the house and I went to lock the door however before I could he kicked the door and then kicked me to my leg. He came back in and refused to leave. He began to push me around in the front room. I made my way to the back of the house and he followed me. Once in the kitchen he grabbed me around my throat and pushed me back against the side where the sink is. He is very strong and held on to my throat. I couldn't move or get away from him. I thought the assault on me would get worse. I was right next to the sink and reached out to grab something. Due to the way he was holding my throat, I could not see what was in the sink. I picked up the first thing which came to hand, which was a steak knife with a plastic handle. The knife was in my hand and I hit out once. It happened so quickly I cannot be sure exactly how it happened. I didn't mean to harm him, I just wanted him to get off me. James then let go of me but carried on shouting at me. He was wearing a white top but I did not notice any blood. He then said he was going to his brothers and was going to take my money and my phone which was on the floor in the living room. He picked them up but threw them on the floor before leaving. I then went outside and saw him go to the floor outside his brother Kevin's. He didn't collapse, he seem to put himself to floor and lye (sic) down. I still had the knife in my hand and I walked over to him. I put the knife in Kevin's bin. I didn't notice any injury or blood and thought he was drunk. He appeared similar to how he was in the past when he has been drunk. I knocked on Kevin's door and he came out. Me and Kevin brought James back into my house. I still didn't see any blood and I don't think Kevin did either as when he brought James back to mine he left him in the front room and went home. James was left on his front. I told James that I was going to bed & he should come upstairs. As he was no longer being abusive I thought he would come up & sleep it off like he usually does. I went upstairs & changed. I had been wearing a nude coloured shirt and grey top and changed into my night clothes. I also removed my make up etc. James hadn't come up so I went back down. James was still in the same position. I then called 999, but I still thought he was drunk & playing up. Because when I hit out of him he was acting normally I didn't realise the level of injury he had. I had used James' phone to call 999 as my phone had been broken and I had no battery. The operator told me to turn James over which I did after the call ended. Only after I turned him over onto his back I could see he had gone pale and that something was seriously wrong. At this point I panicked and can't exactly say what happened next although I recall going outside …"
"[…] cogent descriptions of pervasive and functionally impairing emotional dysregulation and instability, possible dissociative episodes, poor impulse control, disordered attachments with very strong feelings of abandonment when a close relationship ends […]"
"181. […] Given the account of events described by Emma Magson, whilst psychiatric and factors (sic) may provide some explanation as to how the situation arose and Emma Magson's reactions, the appropriate issues to consider in terms of defences to the charge of murder would be Intent or Lack of control rather than Diminished Responsibility".
"123. (The appellant's) EUPD would affect her ability to form a rational judgement and to understand her conduct due to difficulties regulating emotions and relationships. Her PDD would also affect her ability to understand her conduct due to her low verbal IQ, difficulties in verbal communications and concrete thinking. Her ability to quickly form a rational judgement would be affected by concreteness of thinking and low verbal IQ. Her difficulties with emotional regulation would also affect her abilities to form a balanced judgement rather than swinging from extreme positions or getting "stuck" in a position due to her concrete thinking, particularly in a highly stressful and emotionally charged situation."
26. In evidence, Dr Davies said he found Dr Sinclair's reports very helpful and, as just indicated, he accepted her conclusions. He is now of the view that her rational judgment was coloured by emotion to a far greater extent than he had realised prior to trial. She was not able to take a calm view about an unfolding situation. The combination of EUPD and PDD, both of which are recognised medical conditions, would have had a cumulative effect: they would have affected her ability, first, to understand her conduct; second, to form a rational decision; and, third, to exercise self-control at the time of her acts and omissions. In the result, he concluded this would have led to a substantial diminution in her ability to exercise self-control at the relevant time. He was of this opinion regardless of which of the two scenarios was accurate (the fatal blow either being struck in the kitchen or at the front door). In evidence, he was significantly more definite in his conclusions concerning diminished responsibility than he had been in his report of 25 February 2018, which was in the following terms: "143. […] Diminished responsibility, also a possible defence, was not advanced. EUPD and PDD were doubtless significant factors affecting her ability to exercise self-control at the time of the offence. They could also offer some explanation for her later conduct and omissions".
"As this court has observed frequently, any available defences should be advanced at trial, and if evidence, including medical evidence, is available to support a defence it should be deployed at trial. As a general rule, it is not open to a defendant to run one defence at trial and when unsuccessful, to try to run an alternative defence on appeal, relying on evidence that could have been available at trial. This court has set its face against what has been called expert shopping. Nor is it open to an appellant to develop and sometimes embellish their account to provide material upon which a fresh expert can base a new report and diagnosis."
Postscript